Tragically, in 1989, 13-year-old Amber Dawn Barfield was sexually assaulted and murdered. In 1990, defendant Michael Antonio Pizarro, Amber’s older half-brother, was convicted of her first degree murder with special circumstances. In the first appeal in 1992, this court reversed and remanded for a Kelly[1] hearing regarding the DNA[2] evidence. On remand, the trial court ruled that the DNA testing was generally accepted within the scientific community and reinstated the conviction. In the second appeal in 2003, this court found that the scientific evidence failed to satisfy the third prong of Kelly and reversed the judgment. In 2008, a second jury convicted defendant of first degree murder with a special circumstance finding. This is the third appeal in this case. Defendant again raises challenges to the DNA evidence, contends the trial judge erred in denying his motion for a new trial based on jury misconduct, and argues unanimity was required on the murder theory.

After the second trial verdicts were received and the jury had been discharged, the parties and trial court learned that Juror No. 9 had read, during the trial, an earlier appellate opinion in this case.[3] That opinion revealed several items of information that were not presented during the second trial, including: defendant had previously been convicted on all counts by another jury; defendant had been sentenced to life in prison without the possibility of parole; the appellate court’s review of the evidence established that defendant had consumed beer throughout the afternoon and continued to drink at a party; defendant testified at his first trial in which he contradicted portions of his statement to the police and admitted that “alcohol made him violent”; the Federal Bureau of Investigation (FBI) analysis presented at the first trial concluded that the DNA from the semen on the vaginal swabs matched the known blood sample of defendant; the case had been appealed twice; and the appellate court determined that the evidence against defendant was a “‘strong circumstantial case’” and that the DNA evidence clearly “‘“sealed [his] fate.”’” (Pizarro II, supra, 110 Cal.App.4th at pp. 553, 634.)

During the second trial, the trial judge regularly admonished the jury not to consider anything other than the evidence presented in the courtroom. Juror No. 9 repeatedly violated that instruction during the trial. The parties and the trial court agree that Juror No. 9 committed misconduct. They disagree whether that misconduct amounted to juror bias, warranting a new, and third, trial.

We sympathize with the trial judge who, having presided over two jury trials and a prolonged Kelly hearing amid two appeals, was called upon to make the difficult decision of whether to grant yet another new trial in a case that was then almost 20 years old. The trial court ultimately denied defendant’s new trial motion, finding it to be a “close case” and a “real hard, hard decision to make.” While we agree with the trial judge that the juror misconduct in this case amounted to “gross misconduct” and was “absolutely outrageous, ” we disagree with his decision denying the new trial motion. We conclude that reversal is required. Despite the good efforts of the trial judge and the attorneys to conduct the trial in accordance with the rules of evidence, procedure, and substantive law, the juror’s misconduct in disobeying the court’s repeated admonitions and in investigating the case on his own made a mockery of the trial process and prejudiced defendant. We view that juror’s behavior in this case as criminal.[4]

We conclude that the extraneous material (the appellate opinion) read by Juror No. 9, judged objectively, is inherently and substantially likely to have influenced the juror, warranting a new trial. Accordingly, we reverse the conviction.

We are mindful of the burdens—in terms of time, money and proof —of any prospective retrial of this case involving an awful crime that occurred 24 years ago. In this third appellate opinion on a case that has been twice tried, we take no satisfaction in the decision we unavoidably must render, in accord with our duty, as a consequence of a juror’s outrageous misconduct that undermines the soundness of a verdict in our system of justice.

Although we uphold the admission of the DNA evidence, we conclude that the widely held belief that allelic dropout cannot cause false results in a criminal case as long as the defendant’s and the perpetrator’s DNA samples are tested in a consistent manner is based on the improper assumption that the defendant is the perpetrator—in other words, that the defendant is guilty. We determine in this case, however, that any error was harmless.

PROCEDURAL SUMMARY

On August 11, 1989, the Madera County District Attorney charged defendant as follows: count one, first degree murder (Pen. Code, § 187) with the special circumstances that the murder was committed while defendant was engaged in the crime of rape (Pen. Code, § 190.2, subd. (a)(17)) and while he was engaged in the crime of a lewd or lascivious act upon a child under age 14 (Pen. Code, § 190.2, subd. (a)(17));[5] count two, forcible lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (b)); and count three, forcible rape (Pen. Code, § 261, subd. (2)). Defendant pled not guilty.

In 1990, a Kelly hearing was held to determine the admissibility of the results of DNA identification evidence. The trial court ruled the results were admissible.

The jury found defendant guilty on all counts and found true the special circumstances. The trial court sentenced defendant to life in prison without the possibility of parole on count one, to be served consecutively to the upper term of eight years on count two. The sentence on count three was stayed pursuant to Penal Code section 654.

On appeal, we remanded the case to the trial court for a full-blown Kelly hearing to determine the general scientific acceptance of the FBI’s DNA profiling procedure and the FBI’s Hispanic database. (People v. Pizarro (1992) 10 Cal.App.4th 57, 95-96 (Pizarro I).) In March 1998, after a hearing conducted in 1994 and 1995, the trial court found the procedure and the database generally accepted and the evidence admissible. Defendant appealed. In 2002, we published an opinion reversing the judgment. We granted rehearing, and then in 2003, we published a final opinion in Pizarro II, supra, 110 Cal.App.4th 530, reversing the judgment.

In 2008, a second jury found defendant guilty on count one, first degree murder with the special circumstance that the murder was committed while defendant was engaged in the crime of a lewd and lascivious act, but the jury found not true the special circumstance that the murder was committed while defendant was engaged in the crime of rape. The jury found defendant guilty on count two, forcible lewd or lascivious act on a child under age 14. On count three, the jury found defendant not guilty of rape, but guilty of the lesser included offense of statutory rape.

Defendant unsuccessfully moved for a new trial. The trial court sentenced defendant to life without the possibility of parole on count one, a stayed eight-year term on count two, and a stayed three-year term on count three. Defendant appealed.

FACTS

On June 10, 1989, [6] defendant and his wife, Sandy, both about 20 years old, and their five-month-old baby drove to North Fork from Clovis in their white Toyota pickup truck to visit defendant’s mother, Chris Conston, and his sisters.[7] Defendant and Sandy did not visit North Fork often; as far as Sandy knew, defendant had not been there in the several weeks prior to this visit, and the last time she had been there was in late 1988.[8] The drive to North Fork took about 45 minutes and they arrived at Chris’s house around noon. Defendant’s sisters, Gloria, Amber, and Angie, who still lived at home, were there, as well as Gloria’s boyfriend, Billy, who was about 17 years old. After they visited for a while, everyone went to the elementary school to watch the men play basketball. Sandy knew defendant and other people were drinking because they were “just overly happy.” After the basketball, they returned to the house. During the remainder of the day, defendant left the house three times without Sandy. He did not tell Sandy where he was going, but she assumed he was going to the store. After his third trip, he told Sandy his friends were going to a party and he wanted to go. Sandy told him she wanted to go home, but they ended up going to the party at Shady Oak trailer park a few miles up Road 200, which was a two-lane mountain road with lots of trees, steep embankments, and no streetlights.

When Sandy and defendant arrived at the party, Amber, Gloria, and Billy were already there. In total, there were about eight people at the party, one of whom was Scott Nelson. Sandy talked with Amber while defendant drank beer and hard liquor with his friends. Sandy did not drink much because she was nursing the baby. She may have had one-half of a beer. She was not happy to be there. She thought defendant seemed to be handling his alcohol “okay.” He was a regular drinker and she had seen him in various stages of intoxication in the previous couple of years.

At about 10:00 or 10:30 p.m., Amber left the party with Billy and Gloria. Sandy asked defendant to leave, but he refused.

At about 12:30 a.m., Sandy took the baby and left for home in the truck. She drove only a few minutes to Bass Fork Market, then decided she did not want to drive by herself, so she returned to the party. Defendant came outside and they argued for five or 10 minutes about going home. Defendant went back inside for about 20 minutes and came back out around 1:00 a.m.

Defendant was angry with Sandy and he started walking toward Road 200, which was about 100 feet away from the trailer. He told Sandy he was going to his mom’s. He had been drinking, but he was not staggering, falling down, or slurring his words. Sandy got into the truck with the baby and followed defendant down the road toward North Fork. He was zigzagging across the road, walking from one side to the other and hiding behind trees and rocks. He appeared to be hiding from Sandy. At one point, he ran up an embankment on the side of the road, then back down to the road. Eventually, he started running on the road. He hit the hood of the truck and told Sandy not to stop in the middle of the road. As she followed him, she yelled at him to get in the car. She told him she just wanted to go home. Sandy had seen him intoxicated before, but she had never seen him act this way. This continued for more than 15 minutes, until Sandy gave up and drove into North Fork to Chris’s house. She knocked on Chris’s front door and eventually Amber opened the door. Sandy told her defendant was “out there” and she could not get him in the truck because he did not want to come. Amber said, “[W]ell, let’s go get him.” Sandy told her to ask her mom. Amber left and returned with Chris, who gave Amber a turquoise flashlight and told them to be careful.

Amber got in the truck and held the baby. Sandy drove back to the place she had last seen defendant. When they saw him walking, Sandy made a U-turn. They followed him and told him to get in the car, but he refused. He went up a hill and Sandy shined the flashlight on him. He came down and started running. Amber got out of the truck and set the baby on the seat, leaving the door slightly open. Sandy saw Amber in the headlights as she walked across the road toward defendant. Sandy picked up the baby and pulled the door closed. She followed Amber for about 10 seconds. After that, defendant and Amber disappeared. Sandy never saw Amber again.

Sandy drove forward. She held her door open as she yelled for defendant and Amber because the driver’s window was not operable. She heard nothing. It was dark and she could see nothing other than what her headlights illuminated. She yelled for defendant and Amber to turn on the flashlight, flash the light, or do something. Then she saw a flash of light behind a bush. The light pointed upward. Sandy closed her door, pulled forward, and made a U-turn. She stopped in front of the bush and yelled. She was holding the baby, so she could only yell from her open door, which was now on the opposite side of the truck from the bush. There was no response and no more light, so she pulled forward, made another U-turn, and returned to the spot where she had seen the flash of light. She parked, opened the door, and yelled for defendant and Amber. She heard “a scream, a muffled sound, and nothing else.” It was as if someone put a hand over a mouth. It scared her and “[f]reaked [her] out.” She closed her door and immediately drove back to Chris’s house. She told Chris, “I don’t know what happened. I heard a scream, a muffled sound. I’m scared. I don’t know what’s going on.” Chris told her to come in and they called the sheriff’s department. Deputy Loring was on duty that night and he received the call around 2:50 a.m.

Sandy drove to Sierra Automotive at the intersection of Roads 200 and 222 to meet the deputies. Deputy Loring and Deputy Weisert arrived and met Sandy in the parking lot. Sandy was sitting in the white truck with the baby and she seemed upset and frightened. She told them what had happened and they began searching for defendant and Amber. Sandy’s parents came from Fresno to take her home. Sandy left the white truck at Chris’s house.

Just before 6:00 a.m., defendant arrived back at Chris’s house. At about 6:00 a.m., defendant called Deputy Weisert at the station. According to Deputy Weisert, defendant did not seem intoxicated. He said his sister was missing. He explained that he got into an argument with Sandy. His sister came looking for him and he told her he did not want to talk about it. He took off up the hill with her flashlight. She yelled at him about the flashlight and he threw it down the hill. He did not go back down, but later woke up in the bushes and started walking home. As he did, “some cops came upon him and accused him of kidnapping his sister. And then … he basically ran home and was followed by the cops.” He did not describe these cops to Deputy Weisert. But she and Deputy Loring had been the only officers on duty that night, and after Deputy Loring left around 4:00 a.m., Deputy Weisert was the only officer on duty. The next officer would not come on duty until 6:45 a.m. In Deputy Weisert’s opinion, defendant was telling her a story that could not be true. She knew that no other officers were on duty in the area and that they would not have known about the case anyway.

At about 8:00 a.m., Deputy Lidfors went to Chris’s house to speak to defendant. He was asleep, so Deputy Lidfors asked Chris to wake him up. When they spoke, defendant did not seem intoxicated or hung over; nor did he smell of alcohol. Defendant looked as if he had just woken up from sleeping out in the brush. He was wearing the same clothes he had worn the previous night, a white tank top and black and grey Oakland Raiders shorts. He was dirty and there were “stickers, grass stuff sticking off of his shorts.” Defendant told Deputy Lidfors what had happened. When Deputy Lidfors asked defendant if he could give him a description of where he had last seen Amber, defendant directed him to a specific area on the side of Road 200.

Relying on that information, at about 8:30 a.m., officers found Amber’s body about 16 feet from the shoulder of Road 200.[9] The area was a mixture of grass and weeds with a lot of dirt. The grass was trampled down. Amber was nude below the waist, except that she was still wearing short dark socks. Her blue panties were down around her right ankle. Much of her body was covered in foxtails. Her right sock had foxtails on the ball and toe portion, and a large amount of dirt caked onto the heel, as if it had been dug into the dirt. The other sock had foxtails and some dirt on it. A turquoise flashlight was near her right foot. Her tan T shirt and bra were both pushed up over her breast. Her right cheek was bruised and marked. Blood was smeared along her stomach, down her inner left thigh, across her right thigh, and on her right wrist. Her hands were clutching a large amount of dirt, grass, and foxtails. Her pants and shoes were under some brush near her body.

Detective Kern found evidence of activity only in the area where Amber was lying and in an area of dirt slippage on the embankment between the roadway and Amber. He found no evidence of activity either behind the crime scene up to the six-stranded barbed wire fence or on the other side of the barbed wire fence. Other than the dirt slippage area, he found no evidence of any entry to or exit from the crime scene.

Gary Cortner, a senior criminalist, and Richard Kinney, a latent fingerprint analyst, both from the Fresno lab of the California Department of Justice (DOJ), arrived to help Detective Kern process the crime scene.

At about 10:00 or 10:30 a.m., Sergeant Gauthier spoke to defendant at the station. The knuckles of defendant’s right hand were somewhat red and there were some very minor scratches on one of his shoulders.

Around 1:30 p.m., Amber’s body was removed from the scene and taken to the mortuary.

At about 2:00 or 2:30 p.m., Sergeant Gauthier took defendant back to Chris’s house. As they drove on Road 200, defendant pointed to the crime scene area as the last place he had seen Amber.

Sandy returned to North Fork to talk to defendant at Chris’s house. She noticed that one of his hands was bruised and swollen. Defendant often injured his hands at work, but she had not noticed this injury the previous day.

At about 4:00 p.m., Dr. Dalgleish, a pathologist, performed the autopsy on Amber’s body at the mortuary.[10] He noted that the right side of Amber’s face was bruised, most likely from blunt force trauma. In the middle of a prominent bruise below her eye was a small puncture wound, which might have been a source of external bleeding. These injuries were consistent with blunt force by a hand or a flashlight, although some of the injuries could have been caused by falling. She had bruising around her mouth and nose. Amber also suffered an internal hemorrhage in the scalp on the right front of her head, but no fractures of the skull or injuries to the brain. This scalp hemorrhage was consistent with blunt force by a fist or a flashlight, and could have dazed or disoriented Amber. These injuries were less than one day old and were all inflicted before death, but they were not fatal.

Amber’s external genitalia showed no sign of injury. Her hymen was open, demonstrating some sort of sexual activity at some time prior to her death. It was impossible to determine when that had occurred. Her uninjured condition did not suggest that she had not been sexually assaulted, but only that any sexual assault was not aggressive enough to cause injuries.

Internally, Amber’s neck area showed petechial hemorrhages, consistent with asphyxia hypoxia. There was no evidence of strangulation and no foreign material blocking the airways. Her lungs also suffered petechial hemorrhages, which resulted in congestive edema.

Dr. Dalgleish collected vaginal and rectal swabs and made slides from them. He allowed the swabs to dry for about two hours and 45 minutes, upright, separate from each other, and away from the body. He took blood samples from the large vein around the heart and put them in clean, sterile containers. He took scrapings from the dried blood smears on Amber’s body and placed them in a plastic vial. The samples were placed in the victim sexual assault kit. Amber’s blood tested negative for drugs and alcohol.

Dr. Dalgleish determined that Amber’s death was caused by suffocation leading to asphyxia hypoxia. He believed the bruising around her mouth indicated pressure, such as from a hand over her mouth and nose, that prevented air from entering her airways. Generally, suffocation requires about five minutes of complete oxygen deprivation to cause irreversible brain injury. This would require a steady application of pressure. Based on the state of rigor mortis, he estimated her death as occurring about 10 to 14 hours before the autopsy.[11]

On June 13, Detective Kern returned to Chris’s house. He advised defendant of his Miranda[12] rights and defendant agreed to speak to him. After taking defendant’s statement, Detective Kern and defendant drove to the crime scene. Defendant pointed out a tree about 150 yards from the crime scene where he had tried to hide when Sandy first brought Amber back to talk to him. Then he stopped Detective Kern at the side of the road adjacent to the crime scene. He pointed exactly to the crime scene and said it was where he spoke to Amber. He said he entered the area through the dirt slippage area. Defendant explained that after he and Amber finished talking, she wanted the flashlight back. He threw it to her, then turned and ran in the opposite direction of the roadway. The route he indicated would have been right through the barbed wire fence, which he did not mention. This was an area Detective Kern had searched and found no evidence of activity. Detective Kern then drove defendant to the area he said he went to sleep in the brush. Defendant said he ran straight from the crime scene through an open field and over a hill. He next showed Detective Kern the specific area that he spent the night. Detective Kern got out and examined the ground for about 50 yards, but found no tracks in the dirt, on the embankment, or on the roadway. He went to the top of the hill and examined a large area, but found no evidence that anyone had been there recently. Defendant had no response; he seemed not to remember where he had been.

1989 Lab Analysis

The physical evidence was immediately analyzed at the Fresno DOJ lab. (After analysis by the DOJ, described below, the vaginal swabs were sent to the FBI for Restriction Fragment Length Polymorphism (RFLP) DNA analysis. That DNA evidence was introduced in the first trial and discussed at length in Pizarro II (and the opinion read by Juror No. 9), but it was not mentioned in the second trial. The following testimony regarding what was done in 1989 was elicited at the second trial.)

Delia Frausto-Heredia received the victim sexual assault kit on June 12.[13] She examined the vaginal swab first, as was her practice. She examined only one of the four vaginal swabs, all of which were initially in an envelope together. She used good lab practices, including the use of gloves and sterile instruments, and she worked with this evidence only. The vaginal swab tested positive for the presumptive presence of sperm. Frausto-Heredia saved the remainder of the vaginal swab to ensure that the defense could reanalyze it.

Frausto-Heredia determined from the blood samples that Amber was a type O, a non-secretor, and a two plus one plus for phosphoglucomutase (PGM). Defendant was a type B, a secretor, and a one plus one plus for PGM. The PGM result of the blood scrapings from Amber’s leg was consistent with Amber’s own blood sample.

Stephen O’Clair, a senior criminalist, determined that the sperm on the vaginal swab was type B and therefore defendant was included as a possible donor.[14] About 10 percent of the general population are type B, and about eight percent are both type B and a secretor. O’Clair also used good lab practices and safeguards against contamination.

On June 13, Cortner examined the slides from the victim sexual assault kit.[15] He found about 20 to 25 sperm on a slide, along with some bacteria that were streaked with the sperm.

When Cortner examined photographs of the bruises on Amber’s face, he observed some parallel lines fairly close together and wondered what could have made that pattern. He noticed that the turquoise flashlight’s button had lines running across it and the word “Eveready” in the center. Cortner made an impression of the flashlight’s button in clay and determined that the button could have caused the mark.

In Amber’s pubic hair sample, Cortner found none of defendant’s pubic hairs. Similarly, in defendant’s pubic hair sample, he found none of Amber’s pubic hairs. In about 50 percent of sexual assault cases, Cortner observed a lack of pubic hair transfer between victim and perpetrator.

On June 19, seven days after she examined the vaginal swab, Frausto-Heredia examined defendant’s underwear. The underwear and the vaginal swab were never on the lab bench at the same time, and the disposable work surface was changed between each piece of evidence. The underwear tested negative for semen. Amber’s panties also tested negative.

On June 22, Cortner examined defendant’s shorts and found two foxtails on the outside and nine foxtails on the inside. Defendant’s underwear contained eight foxtails on the outside, four in front and four in back.

Kinney found no fingerprints on the flashlight.

2004-2008 Lab Analysis

Many years later, in preparation for the second trial, Steven Myers, a senior criminalist at the Richmond DOJ lab, reexamined the evidence using Short Tandem Repeat (STR) DNA analysis.[16] Myers determined that defendant’s DNA profile matched the DNA profile of the sperm on the vaginal swab. Defendant was included as a possible sperm donor.[17] The estimated frequency of the profile (shared by both defendant and the evidentiary sperm), or the chance that a randomly chosen person would have that profile, was approximately one in 3.9 quintillion African-Americans, one in 350 quadrillion Caucasians, and one in 4.2 quadrillion Hispanics.[18] In other words, the frequency of the profile was exceedingly rare.

Myers found that the DNA profile of the epithelial cells on the vaginal swab was consistent with Amber’s profile. He also determined that the DNA profile of the blood smeared on Amber’s body was consistent with her own profile.

Myers tested blood from Scott Nelson, collected on June 22, 1997, and from Scott’s father, collected on March 21, 2007. Their profiles did not match the sperm on the vaginal swab and they were excluded as sperm donors. Their profiles also did not match the blood on Amber’s leg.

Defense Evidence

Sandy Panico

Sandy testified that when she and defendant left the party, defendant seemed intoxicated. She had seen him that drunk before, but she had never seen him act the way he did that night.

Kathleen Christine Conston

Chris testified that when Sandy came back to the house the second time at about 2:00 a.m. with only the baby, she was hysterical, upset, and scared. Sandy said she could not find Amber, she was gone, and she had screamed. Chris made her come into the house. Chris called the police and then they left in separate vehicles. Sandy drove the white truck and Chris took her vehicle.

Chris testified that defendant returned to her house just before 6:00 a.m. He had scratches that appeared to be from going through brush. He told Chris he had spoken to Amber and then he took off, and on his way home, a policeman accused him of kidnapping his sister. Defendant did not change his clothes because he had not brought any extra clothes. When he woke up, he had “the mother of all hangovers. In fact, he was still kind of drunk.” Later, when he found out Amber had been killed, he cried. He was devastated because he and Amber were “extra close.” The news “hit him pretty hard.” Defendant stayed in North Fork after Amber’s death and continued to work. He was a pall bearer at Amber’s funeral. Two weeks later, he was arrested at work.

Chris thought Scott Nelson came to her house on June 11. He drove a white pickup truck.

William Davis

William Davis had lived in North Fork most of his life. In 1988, he saw defendant and Scott at a Halloween party. They were both dressed in deputies’ uniforms. Scott was pulling a gun in and out of a holster.

William testified that he was familiar with trails that led from the area of the crime scene back into North Fork.

William agreed that he and defendant were “real good friends” and “[b]est buddies.” They had known each other since grade school and they hung out together a lot, but William would not lie for defendant.

Betty Lyons

Betty Lyons was driving on Road 200 at about 2:00 a.m. on June 11. She came upon a tan Datsun pickup truck parked off to the side of the road. The truck’s doors were closed and she did not see anyone inside. At a later time, Betty saw the same tan truck parked in front of Chris’s house during the daytime.

Gena Fabris

Gena Fabris was driving on Road 200 sometime between midnight and 2:00 a.m. She noticed a small white pickup truck, like a Toyota, parked on the side of the road. She slowed to about 40 miles per hour as she passed it. The truck’s lights were off and the doors were closed. She did not see anyone. When she drove by again five to 15 minutes later, the truck was still there. She still did not see anyone.

Guy Clements

Guy Clements was delivering newspapers that morning on Road 200. At about 3:00 a.m., he saw a small white pickup truck and a sheriff’s vehicle near Sierra Automotive. The white truck had the body style of a 1970’s Datsun. West of the crime scene, he saw a second pickup truck that looked like a 1984 Nissan.

William (Billy) Bain

Billy was with Gloria at Chris’s house on June 10. He and defendant had a few beers during the day. They went to the party that night and drank some more. There was marijuana at the party, but Billy did not recall if defendant was smoking it. Scott was at the party and he was getting loud. He was a braggart who liked to drink. He always tried to arm-wrestle Billy every time they saw each other because Gloria was his old girlfriend. That was the reason Billy and Gloria left the party around 10:00 p.m. Billy remembered that Scott drove a small white Dodge truck. Billy never heard Scott confess to a crime.

Gloria Bain

Gloria testified that defendant had one beer at the school on June 10. At the party that night, there was drinking. It was a normal occurrence for this group of people to smoke marijuana, but she could not recall if they did that night. Scott kept asking to arm-wrestle, which was his normal behavior. When Scott came to Chris’s house the next day, he parked his white Dodge truck in the driveway. Defendant’s truck was also in the driveway.

Sergeant Gauthier

Sergeant Gauthier did not see any blood on defendant’s hands, body, or clothes. He did not swab defendant’s hands or take fingernail scrapings. He took the samples required for a possible sexual assault.

Sherri Atkisson

Sherri Atkisson met Scott in June 1997. One day, they were talking with some other people. Scott consumed two beers. He seemed depressed and he said some alarming things. He said, “I killed her, not her brother, Mike.” He said Mike did not do it. He did not mention the female’s name. He said he was driving down the street and he passed her. She was in pajamas. He stopped, she ran into a field, and he chased her. He had to keep her quiet because she was going to reveal that they had been having sex. Another car was coming and he was trying to keep her quiet. Scott said she died, but he did not explain how. About a week after this conversation, Sherri heard that Scott had died.

When this conversation occurred, Sherri did not know defendant, Chris, or any of their family members. She had since met defendant’s family in the courthouse hallways.

On cross-examination, Sherri explained that Scott had been to her home several times, but she did not know him very well. She agreed that she did not know if Scott had been drinking before he came to her house on that particular day. When Scott mentioned pajamas, he did not mention the clothes Amber was wearing when she died. Noel Bartley was present and able to hear everything Scott said. Sherri denied that the only thing Scott said was, “I should just choke you out, too, ” and she denied that she and her friends later concluded Scott must have been referring to Amber.

After Sherri heard Scott’s statements, she contacted the Madera County District Attorney’s office and reported that someone had admitted a murder to her. She requested a return call, but no one ever called her back. In 2007 and 2008, however, she refused to talk to state agents who asked to speak to her about Scott’s alleged statement.

DISCUSSION

I. MISCONDUCT OF JUROR NO. 9

A. Introduction

This was an awful case on many levels: an abominable crime with complicated DNA evidence, two jury trials and a lengthy Kelly hearing in between. And if that did not present enough challenges, the second trial was fraught with allegations of jury misconduct committed by different jurors during the presentation of evidence and during jury deliberations. We need not discuss all of these allegations, because we find Juror No. 9’s flagrant misconduct in reading this court’s 2002 appellate opinion in this case sufficient to warrant reversal of the conviction.[19]

B. Juror No. 9’s Misconduct

Juror No. 9 testified at the new trial motion hearing. He admitted that at the beginning of testimony in the trial, he went onto the Internet, researched the case and found a prior appellate opinion in this case. That opinion revealed: defendant had previously been convicted on all counts by another jury; he had been sentenced to life in prison without the possibility of parole; on the day of the killing he had consumed beer throughout the afternoon and continued to drink at a party; he testified at his first trial in which he contradicted portions of his statement to the police and admitted that “alcohol made him violent”; the FBI analysis presented at the first trial concluded that the DNA from the semen on the vaginal swabs matched the known blood sample of defendant; the case had been appealed twice; and the appellate court determined that the evidence against defendant was a “‘strong circumstantial case’” and that the DNA evidence clearly “‘“sealed [his] fate.”’” (Pizarro II, supra, 110 Cal.App.4th at pp. 553, 634.)

In one part of his testimony at the hearing, Juror No. 9 said that he read the entire opinion a few times; in another part of his testimony, he said that he only skimmed portions of it; and in yet another part, he said he “soaked in” whatever he could understand of the opinion. Specifically, he explained that he conducted this Internet research two or three times. He “researched the case during the testimony phase of the trial. [H]e found the process of researching the case to be quite simple and detailed information of the case to be readily available through the Internet.” As the testimony began, “[he] was lost. And that was really [his] reasoning to try and find to know where [he] was within the case.” He “felt that [he] wanted to do what was right for [defendant’s] case and understand what was going on within the case. So that was the reason why [he] had pulled up some information, which turned out to be the very thick PDF file [the prior appellate opinion], to understand how the series of events had happened.” He “just wanted to understand the timeline[ and] the series of events of the case so [he could] understand so [he could] be on top of stuff while [he was] listening.…” He first read a current newspaper article about the case explaining it was an early DNA case for California courts and it was back in court. Then he turned to the prior appellate opinion, which “was so thick that it took [him] a long time.” He did not pay much attention to the other items produced by his Internet search because the prior appellate opinion gave him the “information [he] needed to know what was going on.” He downloaded the prior appellate opinion and kept it on his computer for about three weeks. He explained:

“[I]nitially, … I just wanted to see it and when I seen that it had the—the timeline … [h]ow the timeline played out then that helped me out a lot. So I read all the way through from start to finish and that kind of gave me an overview to stay caught up with what you guys, in my opinion, what you guys were saying. I’m sure you guys were doing a good job, but I guess I’m slow. [¶] … [¶] No, [I did not read through the entire document;] when I got to the DNA stuff and markers and the alleles and all that it didn’t … make sense at that time.”

He said he would refer back to the prior appellate opinion when questions arose in his mind and he would attempt to clarify them. He mostly wanted to clarify the timeline. He said, “[I]t was mostly just facts that I was sticking to.” When asked if he read the portion of the facts that explained defendant’s testimony in the first trial, he answered, “Oh, okay, yeah. No, I read everything to where it started getting really technical, like the DNA, the extractions of DNA, and the markers. I didn’t understand the theory and stuff like that. But, uh, yeah, I did read this.” In reference to defendant’s testimony, he explained:

“I was looking at everything. I was looking at what people were saying, who said what. I was looking at who was where. I mean, that’s timelines, that’s what a timeline is. Where everybody was at. What they were saying. Who was involved. I mean, that’s—that’s what I was—and when it stop[ped] talking about stuff like that, and then it start[ed] going into theories and DNA markers and everything that I didn’t understand, I stopped.”

He said he just skimmed the DNA and “pulled out whatever [he] could understand, but most of it” did not make sense to him. He did, however, learn that the FBI was involved in analyzing the DNA evidence.

When asked again if he read the prior appellate opinion from beginning to end, he answered: “Oh, absolutely. I mean, what I could understand I soaked in.”

The prior appellate opinion contained information that was not disclosed in the second trial. It was also highly prejudicial to defendant, as we explain in more detail later in this opinion. There can be little doubt that if, during jury selection, Juror No. 9 disclosed he had read the prior appellate opinion in this case, he would have been immediately excused for cause. In our view, if this disclosure had been revealed to the court during the trial, and the defense thereafter moved the court to discharge him, the trial judge would likely have done so. Here, in contrast, the disclosure occurred after the verdict, where the controlling question was whether the juror was actually or inherently biased. (Carpenter, supra, 9 Cal.4th at p. 653.)

The parties agree that Juror No. 9 committed misconduct in consulting an extraneous information source and that prejudice is presumed unless rebutted. Defendant argues that the record establishes both actual and inherent bias on the part of Juror No. 9. The People dispute that actual bias against defendant was shown. As to inherent bias, they both cite cases in support of their respective positions that the presumption of prejudice was or was not rebutted.

Actual bias does not require a showing of prejudice before a verdict will be set aside, because a defendant is entitled to 12 unbiased jurors, not 11, regardless of whether an unbiased jury would have reached the same verdict. (Carpenter, supra, 9 Cal.4th at p. 654.) On the other hand, a finding of inherently likely bias carries a presumption of prejudice that may be rebutted by an affirmative evidentiary showing or by a reviewing court’s examination of the entire record. (Id. at p. 657.) The presumption is imposed because Evidence Code section 1150 precludes a defendant from affirmatively proving that the jury’s deliberations were improperly affected by the misconduct. Since actual prejudice cannot be proven, bias is established if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. (Carpenter, supra, at pp. 652-653.) We conclude that is what happened here.

C. Standard of Review

Whether prejudice arose from jury misconduct is a mixed question of law and fact subject to an appellate court’s independent determination. (People v. Nesler (1997) 16 Cal.4th 561, 582-583 (Nesler) [reviewing court independently determines whether juror was biased].) Courts have stressed the particular need for independent review of the trial court’s reasons for denying a new trial motion in juror bias cases. This is because the reviewing court must protect the complaining party’s right to a fully impartial jury as an “‘“inseparable and inalienable part” of the [fundamental] right to jury trial [(U.S. Const., amend. VI; Cal. Const., art. I, § 16)]. [Citations.]’” (People v. Ault (2004) 33 Cal.4th 1250, 1262.)

D. The Seminal Case of Carpenter

In Carpenter, the defendant was found guilty of rape and murder, and was sentenced to death. The trial court granted the defendant’s habeas corpus petition based on juror misconduct in obtaining extraneous information about the defendant’s convictions and death sentences in a related case. While the trial court stated that the evidence of guilt was “‘overwhelming, ’” it concluded that the usual harmless error test did not apply. (Carpenter, supra, 9 Cal.4th at pp. 644-645.) The Supreme Court reversed without prejudice to the defendant’s right to file a new petition based on the combined records of the habeas corpus proceeding and the underlying trial. (Id. at p. 660.) In a four-to-three opinion, a divided Supreme Court set forth a two-part test for determining bias in an extraneous source case.

First, inherent bias is shown if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror—in other words, had an “‘“effect on the verdict or … deprived the complaining party of thorough consideration of his case.…”’” (Carpenter, supra, 9 Cal.4th at p. 652, quoting from Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416 (Hasson)), or the vote of the juror was influenced by exposure to prejudicial matter relating to the defendant (Carpenter, supra, at p. 651, quoting from People v. Marshall (1990) 50 Cal.3d 907, 950-951 (Marshall)). This test is “analogous to the general standard for harmless-error analysis under California law.” (Carpenter, supra, at p. 653.) Under that standard, trial court error is deemed harmless unless there is a reasonable probability that it affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

Second, if the misconduct and surrounding circumstances make it substantially likely that the juror was actuallybiased against the defendant, the judgment must be set aside no matter how convinced the court might be that an unbiased jury would have reached the same result. (Carpenter, supra, 9 Cal.4th at p. 654.)

Respectfully, we find the Carpenter majority opinion confusing and in some respects contradictory of the very case authority it relies on in reaching its conclusion that harmless error analysis applies to a case of inherent juror bias. In applying the harmless error analysis, Carpenter announces a rule that arguably undermines the integrity of our jury system. (Nesler, supra, 16 Cal.4th at p. 578 [requirement that verdict must be based on evidence developed at trial goes to fundamental integrity of trial by jury].) We are not the first court to question the reasoning, language and conclusion of the Carpenter opinion. (See People v. Von Villas (1995) 36 Cal.App.4th 1425, 1445-1458 (Woods, J., dis. opn.).) We will explain.

After summarizing and approving prior case law concerning juror exposure to extraneous information—including Marshall, supra, 50 Cal.3d at pages 950 through 951 and People v. Holloway (1990) 50 Cal.3d 1098 (Holloway), disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1—for the propositions that (1) harmless error analysis for ordinary trial error does not apply to inherent juror bias based on a juror’s exposure to extraneous material, (2) consideration of actual prejudice is not warranted in such circumstances, and (3) the ultimate question of whether a juror’s exposure to extraneous material constitutes reversible juror misconduct is judged by an objective standard, namely, whether, based on an examination of the extraneous material, the court concludes the material is inherently and substantially likely to have influenced the juror (Carpenter, supra, 9 Cal.4th at p. 651, citing and quoting from Marshall), the Carpenter majority then inexplicably concludes its analysis by stating—directly contrary to Marshall and Holloway—that inherent juror bias based on extraneous material is governed by the general standard for harmless error analysis. (Carpenter, supra, at p. 653.) Not only does the majority opinion not disapprove Marshall and Holloway, it cites both cases approvingly for the rule that standard harmless error analysis does not apply in an inherent bias case. Then, in an apparent turnaround, the Carpenter majority declares, citing Hasson, that the presumption of prejudice can be rebutted where there is overwhelming proof in support of the verdict. (Carpenter, supra, at p. 654, citing Hasson, supra, 32 Cal.3d at p. 417.) In other words, under harmless error analysis, the misconduct can always be deemed harmless if the evidence of guilt is strong enough.

We find this proposition deeply troubling on many levels: it fails to uphold the venerable and constitutional right to an impartial jury; it fails to recognize the difference between assessing prejudice from ordinary trial error and from jury misconduct that impugns the guarantee of an impartial jury; it conflicts with several Supreme Court cases that did not apply harmless error analysis in an inherent bias case; it validates trial outcomes even when a juror has flagrantly disregarded the rules of evidence and procedure that the parties and trial judge have endeavored scrupulously to follow throughout a trial; it significantly impairs the presumption of prejudice, which the law imposes for this kind of jury misconduct; it holds that the only adverse “influence” on a juror that matters is one that changes a juror’s vote; it unduly expands the role of the reviewing court in derogation of the jury’s role; and it treats inherent juror bias the same as the erroneous introduction of evidence in determining whether the judgment should be reversed. We discuss each of these points in turn.

E. Effects of Carpenter

1. Right to Impartial Jury

The United States and California Constitutions guarantee the right to an impartial jury. (U.S. Const., 6th Amend. [“the accused shall enjoy the right to a speedy and public trial, by an impartial jury”; Cal. Const., art. I, § 16 [“Trial by jury is an inviolate right”]; People v. Wheeler (1978) 22 Cal.3d 258, 265 [art. I, § 16 includes the right to have verdict rendered by impartial jurors], overruled in part by Johnson v. California (2005) 545 U.S. 162, 165-173.) The integrity of any trial depends upon the impartiality of the judge and jury. A major objective of the jury selection process and the trial court’s repeated admonition that jurors not discuss the case with others and not consider matters outside the evidence received in the courtroom is to select jurors who are and will remain impartial. Any deficiency that undermines a trial’s integrity calls for reversal without consideration of actual prejudice. (Carpenter, supra, 9 Cal.4th at p. 651, quoting from Marshall, supra, 50 Cal.3d at p. 951.)

2. Harmless Error Analysis

Harmless error analysis presupposes an impartial judge and jury. (Rose v. Clark (1986) 478 U.S. 570, 576-579.) Our California Constitution specifies that no judgment may be set aside based on errors of misdirection of the jury, improper admission or rejection of evidence, errors of pleading, or errors of procedure unless the error results in a miscarriage of justice. (Cal. Const., art. VI, § 13.) Whether a miscarriage of justice occurs depends on whether the error affected the outcome of the case. (People v. Breverman (1998) 19 Cal.4th 142, 165.) When one of these enumerated trial errors is established, the harmless error test permits a reviewing court to consider the weight and strength of the evidence to determine if the lower court error was prejudicial, that is, whether the error affected the outcome. (Watson, supra, 46 Cal.2d at p. 836.) Juror misconduct is not one of the trial errors enumerated in article VI, section 13.

Some lower court errors defy harmless error analysis, such as when a defendant is deprived of his right to counsel or where the trial judge is not impartial. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.) The reason is this: “Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ (Rose v. Clark, [supra], 478 U.S., at 577-578 (citation omitted).” (Id. at p. 310.) Likewise, an inherently biased juror who has received extraneous information prejudicial to the defense commits more than a simple error in the trial process. The misconduct infects the legitimacy of the entire trial framework.

We believe the Marshall and Holloway decisions got it right in declaring that when it is inherently likely that extraneous information influenced a juror, an appellate court’s opinion of the strength of the evidence of guilt should not and may not be used to uphold the verdict.[20] If the extraneous information is sufficient to lead a reviewing court to conclude the information is substantially likely to have influenced the juror, that should end the inquiry. Inherent juror bias is still bias. The strength of the evidence can never erase a verdict’s taint of juror bias, whether actual or inherent.

Our case is analogous to cases where the jury has been misinstructed on the burden of proof. When a jury is instructed on a lower standard of proof than proof beyond a reasonable doubt, the harmless error test does not apply:

“[I]f a reviewing court were to rely on its view of the overwhelming weight of the prosecution’s evidence to declare there was no reasonable possibility that the jury based its verdict on a standard of proof less than beyond a reasonable doubt, the court would be in the position of expressing its own idea ‘of what a reasonable jury would have done. And when [a court] does that, “the wrong entity judge[s] the defendant guilty.” [Citations.]’” (People v. Aranda (2012) 55 Cal.4th 342, 368 (Aranda), quoting from Sullivan v. Louisiana (1993) 508 U.S. 275, 281 (Sullivan).)

Here, it is likely that Juror No. 9’s receipt of the extraneous information contained in the prior appellate opinion prejudiced the defense, as we discuss below. It can never be proven whether Juror No. 9’s exposure to the prior appellate opinion actually affected his vote on the verdict. (Evid. Code, § 1150 [effect of a statement or conduct on juror’s mental processes or voting is inadmissible].) But viewing the prior appellate opinion objectively, we conclude there is a substantial likelihood that the material influenced Juror No. 9 in a way that favored the prosecution and disfavored the defense. For example, the extraneous information may have, in Juror No. 9’s mind, lowered the prosecution’s burden, shifted the burden of proof to the defense, or made him skeptical of defense theories or evidence. (People v. Martinez (1978) 82 Cal.App.3d 1, 21-22; People v. Cumpian (1991) 1 Cal.App.4th 307, 312 [prosecutor’s burden lightened or defense contradicted].) This is so even though Juror No. 9 may still have voted for guilt had he not received the extraneous information (as speculative as that is).

The People, relying on Carpenter, contend that regardless of the quantity or prejudicial content of the extraneous information, and as long as it does not amount to actual bias, inherent juror bias should be deemed harmless if the appellate court determines the evidence of guilt is sufficiently compelling. But a defendant’s right to an impartial jury is trivialized if a reviewing court can excuse serious jury misconduct by declaring that any reasonable juror who had not been exposed to the extraneous information would have found the defendant guilty anyway.

3. Conflicts with Precedent

In 1990, just five years before Carpenter was handed down, the California Supreme Court decided Marshall and Holloway. Both opinions made the emphatic point that assessing prejudice resulting from a juror’s exposure to extraneous information is “different from” and “less tolerant than” harmless error analysis for ordinary trial error. (Marshall, supra, 50 Cal.3d at p. 951; Holloway, supra, 50 Cal.3d at p. 1110.) Marshall’s opinion was unanimous and Holloway included a single, concurring opinion and no dissent. Carpenter cites both cases approvingly and even quotes the above language in its own opinion. (Carpenter, supra, 9 Cal.4th at p. 651.)

Marshall did not announce a new rule. Earlier Supreme Court decisions reversed convictions based on a juror’s obtaining extraneous information without any discussion of the strength of the evidence or the harmless error rule. (SeePeople v. Von Villas, supra, 36 Cal.App.4th at pp. 1446-1447 (Woods, J., dis. opn.).) And, lest there be a concern that the presumption of prejudice is too difficult to overcome in the absence of the harmless error rule, we point out that our Supreme Court has affirmed several cases since Carpenter, supra, 9 Cal.4th 634 by finding that the information was not prejudicial to the defendant for reasons unrelated to the strength of the evidence of guilt. (People v. Thomas (2012) 53 Cal.4th 771, 819 [juror learning of witness’s wife’s recent shooting death not likely prejudicial because witness’s testimony only involved defendant’s purchase of a truck, which was not actively contested]; People v. Tafoya (2007) 42 Cal.4th 147, 195 [no likelihood of detrimental influence because the misconduct occurred after the verdict]; People v. Yeoman (2003) 31 Cal.4th 93, 159-160 [juror’s improper remarks about drug screening procedures at jail not objectively prejudicial because whether the defendant was under the influence had little relevance to his mental state and whether he ever used drugs was not at issue]; People v. Jenkins (2000) 22 Cal.4th 900, 1048 [prejudice rebutted where juror who received information about case from news source was questioned during trial and trial judge made findings that juror learned very little, asserted he could be fair, was conscientious juror, and was relieved to learn that news account was false].)

The Marshall test for evaluating prejudice in an inherent bias case is reasonable. If the reviewing court, after a careful review of the record, determines it is inherently and substantially likely that the extraneous material influenced the juror to the defendant’s detriment, the judgment must be set aside. Prejudice in this context does not require proof of “actual prejudice, ” that is, proof that the extraneous material changed a juror’s vote. Thus, this prejudicial analysis is different from and less tolerant than harmless error analysis. (Marshall, supra, 50 Cal.3d at p. 951; Holloway, supra, 50 Cal.3d at p. 1110; Carpenter, supra, 9 Cal.4th at p. 651.) We would clarify the test by making explicit that influencing a juror to the defendant’s detriment means likely to cause a juror to lower the prosecutor’s burden, shift the burden to the defense, become skeptical of defense evidence or theories, deprive the defendant of thorough consideration of his case, or vote differently than the juror would have if not exposed to the extraneous information.

4. Disregard of Rules of Evidence and Procedure

The Carpenter rule can lead to affirming verdicts in cases where the rules of evidence and procedure, which trial judges and counsel endeavor scrupulously to follow, are flagrantly disregarded by a juror or jurors. (Holloway, supra, 50 Cal.3d at p. 1110 [court’s and counsel’s “efforts were to no avail”].)

A jury trial is not a free-for-all presentation of evidence and argument. Guided by the rules of evidence, along with considerations of procedural and substantive law, a trial judge makes numerous rulings that regulate the admissibility of evidence. These rulings directly influence the parties’ trial strategies, including what witnesses to call, what questions to ask and how to argue their cases before the jury. Counsel are bound by the trial court’s rulings and are often expressly prohibited from bringing certain matters before the jury by way of evidence or argument. When jurors receive information about the case outside of the courtroom, all of the work of the court and parties to comply with the law is potentially undone. When the extraneous information is viewed objectively and the court determines the information is likely to have biased the juror against the defendant, it is not reasonable, in light of the trial court’s efforts to limit the evidence to what is permitted by law, to uphold the verdict simply because a reviewing court thinks the defendant would have been convicted anyway.

By way of illustration, assume a defendant is charged with robbery and there is overwhelming evidence of his guilt. Assume six jurors independently learn from reading the newspaper the following additional information that was expressly ruled inadmissible before the trial began: the defendant had four prior robbery convictions, had been to prison, was on parole when the instant offense occurred, confessed to the crime (a Miranda violation made it inadmissible), and had two other pending robbery cases. The six jurors do not share this information with any other jurors. No actual bias is shown. Can this serious misconduct be regarded as harmless and the verdict upheld simply because the reviewing court concludes that the defendant, in the absence of the jury misconduct, would have been convicted anyway? According to Carpenter, the answer is yes.

5. Presumption of Prejudice

Carpenter renders the presumption of prejudice useless when the evidence of guilt is “‘overwhelming.’” (Carpenter, supra, 9 Cal.4th at p. 655.) A verdict should not stand if an objective view of the extraneous information leads to the conclusion that the extraneous information was substantially likely to have influenced the juror. (Marshall, supra, 50 Cal.3d at pp. 650-651.) Extraneous material can influence a juror in different ways: lowering the prosecutor’s burden, shifting the burden to the defense, making the juror skeptical of defense evidence or theories, depriving the complaining party of thorough consideration of his case, or actually causing the juror to vote differently than the juror would have if he or she had not received the outside material. Since a defendant cannot elicit from a juror how the information affected the juror’s thinking (Evid. Code, § 1150), the law imposes a presumption of prejudice to compensate for this evidentiary handicap. (Carpenter, supra, 9 Cal.4th at p. 652.) But allowing the weight of the evidence—as judged by a reviewing court—to overcome the presumption renders the presumption illusory. It is circular reasoning to impose the presumption because of a defendant’s legal inability to prove actual prejudice, and then allow the prosecution to overcome the presumption by convincing the court that the defendant would have been convicted in the absence of the misconduct, when it is clear that the defendant cannot offer any rebuttal because he is precluded from asking jurors about the effect the outside material had on their thought processes.

In other words, if the evidence is strong enough, there really is no presumption of prejudice, which means the only way a defendant will be entitled to a new trial based on jury misconduct in receiving extraneous information is to prove actual prejudice, which Evidence Code section 1150 precludes him from proving.

6. Influencing a Juror

Although Carpenter does not say so expressly, one effect of applying the harmless error analysis in these circumstances is to declare categorically that the only influence on a juror that is relevant is whether the extraneous material actually affected the juror’s vote. Carpenter ignores other inimical influences that may occur, such as lowering the prosecutor’s burden, shifting the burden to the defense, or making the juror skeptical or distrustful of defense evidence or theories. It also ignores language in its own opinion that the presumption of prejudice is an “‘“aid to those parties who are able to establish serious misconduct of a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of his case.…”’” (Carpenter, supra, 9 Cal.4th at p. 652, quoting from Hasson, supra, 32 Cal.3d at p. 416, italics added.) No one could reasonably argue that such influences are innocuous or do not matter. They can affect a juror’s ability to cast his or her vote based solely on the evidence received in court and affect a juror’s ability to hold the prosecution to the burden of proving guilt beyond a reasonable doubt.

Thus, prejudice can be shown not only when the misconduct results in a different verdict, but also when the misconduct deprives the defendant of thorough consideration of his case. If an objective appraisal of the extraneous information leads a reviewing court to conclude that it is likely such information would lower the prosecution’s burden, shift the burden to the defense, or create skepticism about the defense in the mind of a juror receiving such information, then the defendant has been prejudiced because he has been deprived of thorough consideration of his case by an unbiased jury.

We know that if a trial court errs in instructing on the prosecution’s burden of proof, the error is reversible per se; harmless error analysis does not apply. (Aranda, supra, 55 Cal.4th at p. 367; Sullivan, supra, 508 U.S. at p. 281.) We fail to discern a difference between a case where the trial court has misinstructed on the prosecution’s burden of proof and a case of jury misconduct based on receipt of extraneous information that influenced the juror by lowering the prosecutor’s burden of proof or shifting it to the defense. If the reviewing court believes the material was substantially likely to have influenced the juror in one of these ways, there should be no further opportunity to rescue the verdict under the harmless error test. This is particularly so when the misconduct is discovered after the verdict because there is no opportunity for the court to take corrective steps through admonition or other measures. (Holloway, supra, 50 Cal.3d at pp. 1111-1112.) The inherent bias test, as described in Marshall and Holloway, is reasonable, understandable and sufficient to identify reversible prejudice. The harmless error test should not be tacked on to it.

7. Expanding Reviewing Court’s Role

Another concern is that Carpenter expands an appellate court’s traditional limited role to one that includes weighing evidence to determine whether a jury would have convicted defendant absent the misconduct. While appellate courts are called upon to consider the weight of the evidence in applying harmless error analysis to ordinary trial error scenarios (Watson, supra, 46 Cal.2d 818) and to cases in which federal constitutional error has occurred (Chapman v. California (1967) 386 U.S. 18), such is not the case where the error is “structural” (Arizona v. Fulminante, supra, 499 U.S. at p. 309) or undermines the integrity of a trial (Marshall, supra, 50 Cal.3d at p. 951). A conviction marred by juror bias—actual or inherent—undermines the integrity of a trial. When a reviewing court nonetheless affirms a conviction by applying the harmless error test, then “‘“the wrong entity judge[s] the defendant guilty”’” (Aranda, supra, 55 Cal.4th at p. 368, quoting from Sullivan, supra, 508 U.S. at p. 281), and it oversteps its role as a reviewing court and treads on the exclusive domain of the jury.

8. Treating Inherent Juror Bias the Same as Erroneous Introduction of Evidence at Trial

Carpenter declares that “a finding of ‘inherently’ likely bias is required when, but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment.” (Carpenter, supra, 9 Cal.4th at p. 653.) However, these two situations (inherent juror bias and erroneous introduction of evidence) should not be treated the same.

It is a common, everyday trial experience to have prejudicial evidence (or argument) introduced in open court after which the trial judge is asked to strike the matter and instruct the jury to disregard it. There is a standard jury instruction that reminds jurors not to consider matters that the court previously told them to disregard. (CALCRIM No. 104; CACI No. 106.) In most situations, any prejudicial effect is eliminated or at least mitigated by the court’s instruction, since jurors are presumed to follow the court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Even if no corrective instruction is given, the attorneys have the opportunity to respond to such evidence with cross-examination, rebuttal witnesses and closing argument. Not so with inherent juror bias that is discovered after the verdict.

Another difference is that jury misconduct based on receipt of extraneous material carries with it a presumption of prejudice, while the erroneous ...

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